In a case that included allegations of domestic violence, orders of protection, and financial abandonment, Jones, Wolf & Kapasi, LLC obtained reversal by the New York State Appellate Division, First Department, of the Surrogate's Court, New York County, decision, and was granted summary judgment on behalf of two adult children contesting that their stepfather was entitled to his "right of election" under New York's Estates, Powers & Trust Law ("EPTL"). The "right of election" would have permitted the stepfather to obtain a share of the decedent's, his wife's, estate from her will.
As set forth in the Appellate Division's Order: "A surviving spouse has a right of election under the will of the decedent unless it is satisfactorily established that the spouse abandoned the decedent and that the abandonment continued until the time of death (EPTL 5-1.2[a][5]). To challenge a spouse's right of election, something more than mere departure from the marital abode and living separate and apart is required."
Here, the stepfather was the subject of several orders of protection, based on allegations of domestic violence, at the time of decedent's death. Due to his reprehensible "misconduct" that led to the orders of protection, he was required to vacate the marital residence, stay away from the decedent, and surrender his firearms. Other than returning to the marital residence to obtain his personal belongings, the Appellate Division ruled that the stepfather "...demonstrated his resolve not to return to the marital abode....even after the expiration of the orders of protection". Accordingly, the stepfather was not entitled to his share of the decedent's estate.
The case is In re the Estate of Peggy Wu Maull, 2018 Slip Op 03626 (1st Dept. May 17, 2018). The Order can be read here.
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